Tag: MRI as disbursement

MRI Disbursement Allowed Where Expense Incurred for Dual Purposes

Reasons for judgment were released last week by the BC Supreme Court, Vancouver Registry, allowing the costs associated with a private MRI to be recovered as a disbursement in a personal injury claim.
In last week’s case (Wu v. Ly) the plaintiff commissioned a private MRI following a motor vehicle collision.  This was done following a recommendation of her treating physician.  In allowing this disbursement to be recovered District Registrar Cameron provided the following brief reasons:
[7]             In Colasimone v. Ng and Mo, 2007 BCSC 1179, Madam Justice Gropper was dealing with an appeal of a decision of District Registrar Blok (as he then was) that allowed the cost of MRI scans as a taxable disbursement.  Her Ladyship notes:
In his reasons for judgment Registrar Blok describes MRI scans as presenting a “special problem in considering party and party bill of costs.”  He notes that MRI scans can be used for either or both treatment and litigation and sometimes the line is blurred. The Registrar concludes:
I am satisfied that a sufficient litigation purpose was shown on the evidence before me such that the disbursement was reasonably incurred, necessary and proper in a litigation purpose.  Specifically the purpose here was for Mr. Maryn to make a decision about the impending trial.
Registrar Blok has considered the “special problem” that MRI scans present in his decision of Ward v. W.S. Lessing Ltd., 2007 BCSC 877.  He comments that the cost of MRI scans have been allowed and disallowed as a disbursement.  There are cases which support either position, but as the Registrar notes, each turns on its facts.  The Registrar continues:
If an MRI was performed for the purposes of treatment, then it may be claimed as an item of special damages.  If it is used as an aid in the litigation process, then it is properly claimed as a disbursement on a party and party bill of costs.  Those are the typical questions that are dealt with when MRIs are at issue.
[T]here must be some judgment applied, perhaps with medical input, in considering the necessity for the procedure in a litigation context, given the injuries involved, the likely damages, what the MRI is expected to achieve from a litigation standpoint and so on.
[8]             In paragraph 22 of her decision, Her Ladyship concludes by saying, having reviewed all of the evidence:
Thus the scans were for two purposes:  to determine the extent of the plaintiff’s injuries and for treatment purposes.
[9]             In the result Madam Justice Gropper upheld the Registrar’s decision, finding he did not clearly err in finding that the disbursement related to MRI scans was reasonably, necessarily and properly incurred for the purposes of the litigation.
[10]         In this case there is evidence before me that the impetus for the MRI was from Dr. le Nobel, who was a treating physician for the Plaintiff and who was continuing to suffer ongoing pain and discomfort some four years following the motor vehicle accident.  Because of Dr. le Nobel’s concern about her continuing symptoms and to better assess them, he recommended that an MRI examination be done.
[11]         Mr. Wiseman was involved as counsel in the process and pointed out that the cost for the MRI examination was one that was paid directly by him.  He was concerned to have the best evidence available to serve as a foundation to most reliably assess the Plaintiff’s claim for damages. I am satisfied that this is one of those cases where the MRI was obtained for two purposes being  for diagnosis and also to assist the Plaintiff and her counsel in better evaluate and present her claim for damages.
[12]         Mr. Chalcraft did not take any issue with the cost of the MRI other than to object to the claim for interest.  Mr. Wiseman abandoned the claim for interest, and as a result the MRI disbursement is allowed as claimed in the sum of $1,595.

Private MRI Disbursement Disallowed Due To No Evidence of Urgency

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, disallowing recovery of the costs of a private MRI in a personal injury lawsuit.
In this week’s case (Repmicki v. 616696 BC Ltd) the plaintiff obtained a private MRI in the course of his lawsuit.  At settlement the parties could not agree whether this disbursement was reasonable and brought the matter before the Court.  District Registrar Cameron held that while having an MRI was reasonable, there was no evidence justifying the expense to be privately incurred.  In dismissing the claimed disbursement the Court provided the following reasons:
[5]             While the medical evidence that I was referred to satisfies me that obtaining an MRI examination in this case was a reasonable step to take in the Plaintiff’s interest and to assist with a determination of whether or not there was a causal link to her neck, upper back, and lower back injuries and the motor vehicle accident, I am not satisfied that it was reasonable to incur the additional expense to have the MRI examination done in the private healthcare system.  I may have been persuaded it was reasonable to do so if, in fact, there was evidence that there was going to be an ongoing and significant delay in having the MRI examination done in the public healthcare system, but that evidence was not before me.
[6]             For these reasons, the disbursement will be disallowed.

ICBC Injury Claims, Trials and Disbursements

Generally speaking it can be very expensive to bring an ICBC injury claim to trial in British Columbia.  I’m not talking about lawyers fees here.  There are many very well qualified personal injury lawyers in BC who handle ICBC injury claims on a ‘contingency basis’ and most Plaintiffs with a good claim have the luxury of shopping around finding a lawyer that is the right fit for them.  What I’m referring to is the actual out of pocket cost of bringing a case to trial in the British Columbia Supreme Court.  These are called ‘disbursmemnts’.
Most ICBC injury claims focus heavily on the nature and extent of car accident related injuries.  To properly present such a case in court expert opinion evidence is necessary.  Doctors are entitled to charge fees for providing this service and these fees can quickly get into the thousands of dollars, particularly with complex injury cases such as brain injury claims and chronic pain disorders.  Other fees, such as court filing fees, witness fees, process servers fees, photocopying expenses (these can quickly add up particularly in ICBC jury trials where multiple copies of all exhibits must be made) are also commonly incurred.
Most lawyers that advance ICBC injury claims on a contingency basis fund the disbursements to bring the case to trial.  After judgement the court has certain powers set out in the Rules of Court to award the victorious party their ‘costs and disbursemnts’.  If the parties can’t agree on which disbursements were reasonable an application can be made to the Court to make a ruling.
Reasons for judgment were released today dealing with the issue of ‘reasonable disbursements’ following a BC personal injury claim.  Some of the more interesting expenses allowed, from my perspective, were 3 MRI scans paid for privately through Canadian Medial Imaging.  These were allowed because “(a doctor) clearly did recommend an MRI to try to assess the cause of (the Plaintiff’s) ongoing problems”.  Also, the Trust Administration Fee (a fee lawyers must charge in BC when opening a new file) was held to be reasonable and the Defendant was ordered to pay this cost.  
While this judgement does not create any new law it is worth reviewing to see the types of expenses that are sometimes incurred in prosecuting ICBC injury claims and to see how the BC Supreme Court deals with the issue of reimbursement of these expenses.  If you are advancing an ICBC injury claim in the BC Supreme Court you should keep judgement such as this one in mind when deciding what expenses you will incur while preparing your case for trial.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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